Property Easement Agreements

residence in Boise foothills in fall

When you willingly give someone access to your property for a specific purpose, you grant them an easement or the right to cross the boundary line. When this happens, the land owner may still use that specific part of the property as long as they don’t interfere with the easement's purpose. Also, the easement owner does not have ownership of that land; they just have the right to cross the boundary line and use the specified property.

For example, if you are discussing an easement with a neighbor, it’s always best to get a written easement agreement rather than give an implied, unwritten easement. This is so the easement agreement can be included in property records and the title insurance policy. A real estate lawyer can help you draft the easement and assist with any legal descriptions.

Before we explain more about easement agreements, let’s discuss a few terms as well as the different types of easements according to the Idaho legislature.

Servient Estate vs. Dominant Estate

Some easements can be used by the general public, while some can be specifically for individuals. Whether public or private, two types of estates are involved with the easement:

  • Servient estate: the land that is burdened by the easement.
  • Dominant estate: the land that is benefitted by the easement.

For example, if one property is landlocked by another property, and the only way to access the highway is through an easement pathway, then the landlocked property would be the dominant estate, and the property next to the highway would be the servient estate. If an easement agreement were written, it would add value to the dominant estate but decrease the value of the servient estate.

Types of Easements

Easements can be administered for several reasons and different property owners, such as private landowners, government entities, or public utilities.

Easements can be used for roads, highways, pipelines, irrigation ditches, canals, and power lines for the purposes of preparation or negotiation. Concerning homeowners, an easement can be administered for disputes between neighbors as well as a public road that connects the main highway to a residential property.

Idaho State Easements

Easement laws are in place from state to state but not at the federal level. However, you’ll find that easement laws can be similar in states that lie in the same region.

Idaho, in particular, has several easement laws, some written or unwritten and some public or private. The Idaho legislature has the following easements outlined in its state laws:

  • Express Easements
  • Reservation Easements
  • Affirmative Easements
  • Negative Easements
  • Utility Easements
  • Public Easements
  • Easements by Necessity
  • Prescriptive Easements
  • Easements by Estoppel

How to Get an Easement in Idaho

There are four ways to get an easement on a property in Idaho:

  • You can buy the land from the owner, in which both parties must sign an agreement in the relevant county.
  • You can create an eminent domain, condemning private property for the public good.
  • If you’ve used the land without permission for several years, you can get an easement on the property. This is called prescriptive use.
  • An easement can be implied to exist without prescriptive use, even if the easement has not been written down or recorded.

Issues to Consider

With eminent domain authority, the Idaho legislature can only decide who acquires the property or the easement. Also, the right of eminent domain has mostly been limited to governmental and quasi-governmental entities like counties, cities, and districts. Even with these entities, there may be restrictions by the legislature.

In some rare cases, the Idaho legislature has granted the right of eminent domain to individuals and private entities, such as farmers who have to build a ditch to irrigate water from a nearby creek to their property.

When it comes to implied easements, one of the most common examples is when a farmer sells off their property that doesn’t have a frontage road but does not include a written easement to access the property. According to Idaho law, this easement would be implied to avoid the property being landlocked.

How to Create a Property Easement Agreement

To have solid documentation of the easement, it is best to write up an agreement, and this can be created by the deed, a contract, or a restrictive covenant. These agreements should be included in the public property records in the county where the easement is located. This is important because if it is not recorded in the correct county, it could affect subsequent land ownership.

Easement agreements should have the correct legal descriptions and notarized signatures. A survey will also need to be conducted to complete the easement agreement. A real estate lawyer can assist with the writing process and properly address the easement's scope so that the expectations are clearly defined for both parties.

Here are the parts to include in a property easement agreement:

  • Description of Properties: This description should have as much information as possible, but it should always include the address and a photo, or a reference to the owner.
  • Illustration of the Easement Area: This should be a clear drawing of the easement area to avoid any confusion or disputes in the future. In this section, you can include the professional survey of the easement area.
  • Covenant to Not Disturb: The party using the easement should ensure that the owner does not interfere or create problems when using the property. A covenant to not disturb the use of the easement would specify the restrictions for the property owner.
  • Maintenance Obligations: This section would determine who would take care of the property and pay for repairs.
  • Property Taxes: While the property owner typically pays the real estate taxes, this section of the agreement should address who is responsible. It might make more sense to have the grantee pay the property taxes if they are consistently occupying and using the property long-term.
  • Potential Liabilities: This section should address the potential liabilities that could arise for behavior on either side of the easement agreement.
  • Insurance: This section would address the obligations of either party to pay for property insurance or any other coverage.
  • Provisions and Termination: You will want to outline the provisions and means for termination should one of the parties fail to make tax payments or provide maintenance and repairs to the property.
  • In Gross vs. Appurtenant: In this section, you should address whether the easement is in gross or appurtenant. An in gross easement is when the property is granted to the individual or entity, but that does not include subsequent owners after they sell the land. An appurtenant easement “runs with the land,” or the rights survive the sale once the original property owner sells the property.

Our Real Estate Lawyers Can Help You

We can not only draft the property easement agreement for you but also terminate the agreement if it should be needed. A real estate lawyer is essential for an easement agreement because they can outline the exact legal descriptions and expectations so it won’t be contested by other parties in the future.

Contact our law firm today for assistance.

Two Offices to Serve You

Boise Office
208.384.8588 199
N. Capitol Boulevard,
Suite 200 Boise,
Idaho 83702
Twin Falls Office
208.384.8588
516 Hansen St. E
Twin Falls, ID 83301

Request a Consultation

(208) 384-8588